Judiciary not transformed - Phosa

Johannesburg - To say that the South African judiciary has been wholly transformed since the end of the apartheid era is an "artificial argument", according to ANC treasurer-general Mathews Phosa.

"Issues of ideology are not going to leave us... 15 years after apartheid, people brought up on a diet from their mother's breast and their father's lap on apartheid, to say all of a sudden they are very different, it's artificial," he said, speaking at a public debate at the University of Johannesburg.

"I don't believe it... I accept that there will be weaknesses of human beings sitting there... it's like many white people today, you don't find any one of them who supported apartheid.

"No one wants to say I supported apartheid, it's the same thing. It's an artificial argument and we should not be squeezed in that box of legal artificiality or philosophical artificiality... we still have problems of transformation in this country in terms of the judiciary," he said.

He added that South Africans should internalise and acknowledge that they hailed from a difficult past whose effects cannot be erased within so short a time.

Transformation of judiciary

Professor David Unterhalter, a South African practitioner and law professor participating in the debate, said such a view amounted to a condemnation of the Judicial Services Commission and the processes undertaken to transform the judiciary.

"Mathews still seems to think that we have a fiction of the independence of the judiciary, that in fact what we should be doing is approaching them with great suspicion because we harbour the suspicion that there are many sleepers as it were from an older order," he said.

"... the contention that we actually allow a lot of conservative backward looking judges to be appointed... I would venture to think that would be a huge condemnation of the Judicial Services Commission and I don't think its true.

"It disturbs me to hear that we inherited apartheid judges... who are they? Let's have it out there, to ensure that we have the best kind of judiciary," he said.

There was, however, a "huge burden" faced by those who had limited or no access to the law due to poverty or physical distance, Unterhalter said.

Also, instances of abuse of citizens in the courtroom have occurred, he conceded, but this was more due to class difference, not a racial one.

"Judges, and this is not about race, tend to be people who are middle class whose experience have little connection to poverty and circumstances surrounding it... and we all know about judges who abuse people in court," he said.

This was "not befitting of their office" and they should be severely dealt with in such instances.

"Those are occasions when we must come down on them and come down hard.

Boundary between law and politics

During the debate Phosa and Unterhalter chewed over the relationship between judges and their relationship to politics.

Unterhalter said if the boundary between the law and politics was not respected, judges respecting what they could not do and politicians and the legislature failing to respect the duties of judges, the result would be "a mingling of concepts and a corruption of democracy".

"This is why I think very often in our public discourse these lines are not properly drawn and when they are not properly drawn you start to get the erosion of the basic idea of a Constitutional democracy.

"I think we have seen quite a bit of this in relation to some of the things that have come out of various legal trials and tribulations of Mr Zuma [ANC president Jacob Zuma].

"What we have seen is in the public sphere is that when the outcome of a judicial process seems to be politically valuable to one party or another than it is applauded and when it isn't valuable then it isn't applauded and it's thought to be disreputable or judges are thought to be counter-revolutionary... and that is an idea that is fundamentally antithetical to the idea of the independence of the judiciary and the Constitutional state that it is built on," he said.

It was immaterial whether the outcome suited any political purpose, he added, what mattered was whether the judge had "independently made the determination" within their realm of responsibility.

"... we may well criticise there reasoning, we may think they could have done a better job as a legal reason but we certainly shouldn't attribute to them some set of disreputable motives in that they are counter revolutionaries or that they are somehow not discharging there political obligation and that is precisely where the debate starts to go wrong," he said.

Zuma case

During the debate Phosa said the basis of Zuma's application for stay of prosecution was that he would not receive a fair trial.

"Zuma is just a citizen... Its not fair to try and impeach him before he reaches the gate [presidential gate]... there's a public impeachment... there is not a single person including all the judges who does not have an opinion on Zuma and it raises whether or not he can have a fair trial anywhere in this country," he said.

Phosa said Zuma would pursue only legal means to end his woes with the National Prosecuting Authority.

"Zuma said he will stay in the court, he never wants to move out of the court of law...he is using all his legal armoury," he said.

Unterhalter disagreed with Phosa, saying Zuma would be tried fairly.

He based his arguments on the fact that judges based their verdicts on the evidence presented to them.

"Of course judges read newspapers, but when they go into a court room, they rely on evidence," he said.

"Now is there some notion that Mr Zuma's case has been so much talked about that when ultimately the evidence is produced that no judge can fairly consider that evidence? I don't think that it's true and if it is true then we have some very serious problems with the independence of the judiciary. "